We can help either way. Click on the Articles button on the menu bar above to go to publically available videos and articles,
© 2025 Your Legal Leg Up, All rights reserved
Tag Archive for: debt defense
Your Right to a Jury – Should you Demand One
Jury Trial
I know I’ve discussed whether you should seek a jury trial before, but I want to give it a new look for this set of videos. In my view, debt defendants should always ask for jury trials if they have the right to them, and most of them do have that right. These days that’s more important than ever.
Your Right under the Constitution
By constitutional law, you have a right to jury trial under the 7th amendment for most “legal” claims. “Legal” in this sense is a term of art referring to the historical development of the English courts. Suffice it to say that most claims “sounding in” breach of contract are “legal” claims. Account stated, on the other hand, is not, so if the credit card company is suing you ONLY for account stated, you probably don’t have a right to jury trial, but for almost all other credit card or loan based claims you do. And if the plaintiff is suing you for breach of contract and account stated, you will have a right to jury trial that will, in all likelihood, control the whole case.
So most of the people watching this video or reading this article will have a right to jury trial. Should you take it?
Yes. You should.
Judges and Lawyers Take Jury Trials More Seriously
The primary reason is that judges and the other side will take jury trials more seriously. This means that the judge will be much more careful about what kinds of evidence to allow the jury to see, and since that is the heart of much of our defense, this is a very good thing. It isn’t that a judge should allow hearsay to affect his or her decision, it’s that the judge will pay much closer attention to your argument that something IS hearsay if he or she is worried about a jury hearing it. It’s just a more serious kind of case.
And the second reason is that a jury trial is a more serious kind of case. A judge-held trial could last half an hour or even less, but a jury trial will be measured in hours or possibly days if there are any complications. That’s because the jury has to be selected for starters, and that takes time. Then, every evidentiary objection will be taken more seriously and the judge will care more about getting it right in order to make sure the trial doesn’t have to be redone. And finally, there will be jury instructions, which also take time to set up. The difference in cost of attorney time could easily be five thousand dollars, and debt collectors don’t like to put that kind of money into cases like this. It’s just the way they do business, not that they fear them or anything.
Juries are More Likely to Believe you
You probably don’t have much money if you’re being sued by a debt collector, and if you’re representing yourself you are certainly not a trial judge. Judges, debt collectors, and the lawyers who represent debt collectors all have money, and most of them were born into privilege. They’re not usually the people you want making decisions that affect your life because, to be frank, most of them don’t care about you at all. You know who might care about your situation, though? The jury. Nothing’s guaranteed, of course, but I’ve found that a jury is more likely to see things your way. Especially when combined with the chances of getting better evidentiary rulings from the court in jury cases, I think this can make all the difference.
Jury Trials are NOT Scary
It might sound like a jury trial is a bigger deal for a shy or intimidated person, and it is true that they are somewhat more complicated, and you’re playing to people in the jury rather than just the judge. But although that’s true, you will probably find, in real life, that it doesn’t matter. Juries are just as easy to talk to as judges, and if you’re caught up in your case it’s probably even easier to talk to the jury. They’re much more like you than the judge is. I used to think you had to be more “entertaining” for juries than judges, but I don’t think that anymore. If you can stick to your script, that should be good enough: juries will listen as well as judges in my opinion.
There are factors you’ll need to consider as you prepare for the case, but in making your decision on whether or not to demand a jury that’s probably all you need to know. The judge will be more serious, the defendant will like the case less, and the jury will be easier to talk to than the judge and may be fairer. In general. So we suggest you ask for a jury trial. Find out your court’s rules on asking for one before you file your answer if that is possible.
This article updated 3/25/25
Do I Respond, How do I Respond, What do I Respond
DO I Respond, HOW do I Respond, and WHAT do I Respond when Sued for Debt?
We talk elsewhere about what constitutes valid service of a lawsuit, and you should check out that video and article if you have any questions about whether you’ve been served. That makes a large difference in what you should do, and if you have been improperly served, you likely will not want to “answer” the suit at all and may instead want to “move to quash” the suit.
We also discuss elsewhere whether you should respond to a debt collection lawsuit you find out about if you have not been served the complaint. To boil that down to its most essential point, if you have not been served at all – you hear about the suit from a neighbor or look your name up in court files, or a lawyer sends you a letter saying you’re being sued – we usually suggest that you take no action if you don’t have a lawyer. If you do have a lawyer, and the lawyer thinks it’s best to get on with it, that might be a good idea, but as a pro se defendant you won’t be able to shut the case down the way a lawyer might.
Let them serve you if they can, but you have no obligation to help with that process. You don’t have to go down to the sheriff’s office or call the firm suing you or its process server. See if they can get you, and if they can’t the case will be dismissed against you. It actually happens a lot, although not a statistically huge percentage of cases.
If you go this route, you will want to keep an eye on the court files to see if, whether or not they HAVE served you, they claim to have served you, and that brings up a special issue that we discuss elsewhere, too.
If you are Served the Suit
If you get served, your next question will be HOW to respond. If you fail to respond at all, the other side will get a default judgment and start trying to get your stuff, so this is probably not a good idea for you. You’ll need to Answer or file what’s called a motion (in some jurisdictions, like California, you could file what’s called a “demurrer,” which is just another kind of motion). To answer this question, you should first consider what kind of court you’re in. Are you in a small claims court, sometimes called a “magistrate” court? Or are you in a “real” court?
If you’re in a small claims or magistrate court, see our video and article on that.
Assuming you’re in a real court, you’ll need to do two things right off the bat. First, find your state’s Rules of Civil Procedure and look up the part about service of process and motions to dismiss. Some motions to dismiss have to be filed before you answer the petition. Find out if you have one of those – the petition is vague, names the wrong person, or violates certain procedural requirements some states have for debt collectors. If you have one of these, you might be (and almost certainly are) waiving your right to bring the motion if you answer first.
If they claim you were served, but you have some reason to dispute that, you probably need to bring what’s called a “motion to quash” service before you answer (as mentioned above), since answering will be regarded as your consent to the court’s jurisdiction.
If none of those concerns apply to you, you will need to answer the suit. In some states, they have what’s called a “verified petition,” which means that someone swore to the truth of the allegations. If you have that sort of petition, you will need to swear to your answer, and this means getting a notary public to witness the document. But this is rare. In most instances, the petition is an ordinary one signed by the lawyer for the debt collector. If that’s what you’ve got, you will simply want to deny almost all of the paragraphs, one by one, in the petition. Don’t go to absurd lengths and deny your name or address, if those are correct, but you should generally deny all of the other substantive allegations. The legal effect of your denial is to say, “prove it.”
In some states you can file what’s called a “general denial,” which does in one sentence what I just suggested.
If you think you have a counterclaim against the person suing you, you will want to add that to your answer.
We discuss “affirmative defenses” elsewhere, but in general they are facts that, even if what the debt collector says in its petition is true, would mean you don’t owe them money. Most typical of these sorts of defenses are some sort of agreement to settle or address the claim, or the passage of too much time before they brought the suit, called the statute of limitations.
The essence of an affirmative defense is that you bear the burden of proof in showing that these factors exist, and you also must plead them in your answer.
Finally, let’s talk about demanding a jury. Our position is, generally, that debt defendants should ask for a jury. We discuss this in greater length in our article and video on juries, but if you think you want a jury (as we recommend), you need to find out how your court and state require that you demand one. In federal court and some states, it’s enough to say it as part of your answer. In some states, you have to make a separate request by separate pleading. Find out what you are required to do and do that.
If by chance you’re just finding out about this after already starting to defend your case, that doesn’t mean it’s necessarily too late. If you have a right to jury trial, the right is absolute when you raise it in the proper way and time, but even if you don’t do it when you should, the court should normally grant your request anyway absent some sort of misbehavior or the passage of too much time, and they are required to be “liberal” in their interpretation of what’s too late. That is, they are supposed to lean towards granting your request for a jury, so even if you’re late, you should go for it if you want one.
This article updated 3/25/25
What to Expect as a Poor Person in a Rich Man’s Game
What to Expect as a Poor Person in a Rich Man’s Game
You may have heard that “justice is blind,” which oddly enough was meant to suggest that justice is fair in America – it’s blind to class and race, and all the rest, supposedly. But if you’re being sued for debt you’ve probably heard of another saying that’s a little more apt: “it’s a big club, but you aren’t in it.”
But don’t give up. You have a good chance anyway.
I’m afraid that second saying is probably more relevant to what you can expect in the courts. If you’re going it pro se, that is to say representing yourself, you’re going to have some trouble getting the attention of most judges. They’re not going to value what you say as much as they’d value what a lawyer would say, especially a lawyer for a corporation. Most judges are on that side of the fence, and they’re DEFINITELY from that side of the tracks, if you know what I mean.
So let’s just say there’s an institutional bias – prejudice – against you. But I am saying “most” judges, after all, and some don’t share that bias.
And as a general rule judges do have a sense of fair play as far as playing by the rules, although again this is just a “general rule.” If they care about the outcome of a case, I’d say they can be pretty results driven, never minding the rules, but in fact most of them do NOT care about the outcome of debt cases. On the whole they seem not to like them, and we’ve all heard that debt collectors are notoriously heartless and… dirty. The judges are aware of all this, and I think they do regard them, on the whole, as the vultures of the legal kingdom. Judges often come from the more high profile sort of law.
But these are generalizations, and you should observe for yourself what your judge is like.
And here’s yet another general rule of the courts: the judges regard cases involving less than a couple of million dollars as being sort of trifling and not worth their time. That’s a thing you should never forget. It’s a question of who they blame for your case wasting their time. I think they start with the sense that YOU are to blame, if you bother defending yourself, but this can change, and we want it to change. You didn’t bring the suit, after all, but you are one of the few meaningfully opposing the debt collectors, and so the judges might blame you for that. It has often seemed that way to me, anyway.
This is all hardly a ringing endorsement of the process, I know, but probably nothing new to you, either. So why do I still think you have an excellent chance of winning if you fight these cases? Because the debt collectors really don’t usually have what they need to prove the things they need under the rules, and courts do have respect for rules. They’ll forgive corporate counsel a few transgressions, but in the final analysis they want the rules to be followed, and the case can be reversed on appeal if they don’t. So you have your chance.
And judges are people. The more time you spend with them, providing you keep your goals in mind and respect their time, the more the judges will like you, the more they’ll listen to what you have to say. And you will have the law on your side. That does matter. It usually makes all the difference if you know what you’re doing.
And that’s why we’re here – to make sure you do know what you’re doing. Just be aware that whatever they say about cutting a break for non-lawyers in the justice system – and they do in certain unimportant ways – you’re probably going to be held to a higher standard than the lawyer representing the debt collector rather than a lower one. You’re going to have to know more and do a better job than the other side.
You can do that, it just takes work and a certain humility. The lawyers on the other side are not the greatest legal minds. The debt collection business draws business people, and the business they’re in means they won’t spend a lot of time on your case. They won’t have a lot of the stuff they need or the time to get it. Your job is to figure that out in your case and show it to the judge in a way he or she will listen to. It’s a challenge, but it can usually be done. We’ll be helping you.
Debt Collection Lawyers
The lawyers for the other side have a job to do, and that’s to beat you. Some of them will treat you with respect, and others with contempt (which will be controlled), but remember their job, and however they present themselves to you it will be part of their overall plan to beat you. Don’t expect to go out with them for drinks after it’s all over.
If You’re Pro Se
If you’re trying to represent yourself, we can help. The best way for us to help is through membership, but we also have products that can help along the way.
Our 20-20 Membership
Our 20-20 Membership
People often ask me what they should get first from Your Legal Leg Up. To me, the answer is obvious, and it’s both the first and last thing you’ll pay for in most cases: the 20-20 membership. It’s the best thing we offer both in value and price. It’s so much better than the other options, in fact, that I almost feel guilty when people buy anything else, but there could be reasons something else would be right for you, so I’ll talk briefly about your other options at the end of this article.
Teleconferences
I’m not aware of any other program on the market that offers anything like our teleconferences.
They are is an opportunity to ask questions in real time. You can ask about what things mean, what the bad guys might be driving at or trying to accomplish with something they’re doing, and how you might respond. We’ll help direct you to sources of information or guide your research. Sometimes you might just want to know where you are in your case, what a word means, or how to say or search for something… stuff like that.
Sometimes you’ll just need some encouragement and a reminder to keep up the good work because
working steadily is important but difficult in legal work, where there are deadlines that can be months away, but you forget how much time things take even aside from doing the work itself.
And sometimes you’ll want to hear other people who in the same boat as you are. Debt defense pro se can be a lonely process, but there are a lot of people trying to defend themselves. You can talk to them, and we offer encouragement and coaching as well as more substantive help too. People who use it find it enormously helpful. We can’t offer legal advice – you’d have to pay between $150 – 250 per hour to get that – but consider it a very active form of coaching and help.
Teleconferences currently happen three times per week and members can come to any and all of them. They’re scheduled for an hour each, but often go above that amount of time because I want everyone with a question to get it answered. If need be, we’ll increase the number of teleconferences per week to make it easier to get those questions answered.
Fees and Prices – Why the 20-20 Membership is Best
Most of our memberships involve a registration fee and a monthly payment, but the 20-20 only requires one payment for a full year that will be less than the other memberships for a year. The other memberships offer discounts on our digital products, but with the 20-20 you get all the digital products for free.
In other words, for one price you get all of our digital products and access to all the materials on the website for a year in addition to the teleconferences. The digital products which are designed to make the whole process easier and more effective, and the many articles and videos should help you get a deeper understanding of specific topics as well. You don’t get any “bonuses” because you get everything with the membership.
Materials You’ll Get – You Get ALL Digital Products we Offer
Maybe that’s all you need to know, but if you like to see it all before you make a decision, I’ll say you get all the digital products on our comprehensive product page. This includes numerous reports, including among others, Got Debt, Assignment Contracts, and Three Weaknesses Almost All Debt Collectors Have, the Manuals for Debt Litigation, Debt Negotiation, and Credit Repair, and all the Motions Packets, including the Motion to Vacate Default, Motion to Dismiss, Motion to Compel, and Motion for Summary Judgment. There will be others, too. You will also get our Model Discovery Pack and, if you live in either California or Pennsylvania, products relevant to those areas.
And you’ll get access to all the hundreds of articles on our site. Many are free to the general public, but many others are restricted by level of membership. As a 20-20 member you get them all. Go here to sign up for the membership now, be sure to click on the 20-20 membership option.
Why Such a Good Deal?
I know this is going to sound like sales talk, but the 20-20 is a much better offer than we’ve ever made, and some explanation might help it make sense. There are two reasons, one selfish, and one not so selfish, for making this offer.
The selfish reason is that I’ve noticed that when people get sued they regard the law suit as a major priority and will pay what they have to (if they can) to give themselves a chance to win. That makes a lot of sense to me. But if they sign up for a monthly membership, there often comes a time when the case is less scary, or there comes a time when they need to buy a product but don’t have the money. So they cut corners and skip a product. That lowers their chance of winning, which isn’t good for Your Legal Leg Up’s reputation. It’s very important that you all win if at all possible, so making a deal which will never make you cut corners makes good business sense to me. And it’s why I’m here in the first place.
The other reason is just that I can do it. The products are here (and the work has been done, though they are sometimes revised), and I want you to be able to do your best work and get your best results without always having to sweat gallons. You’ll have plenty to do, but we can make things a lot easier. So I want to do that and am fine with making a little less than I might in to do it.
The Other Memberships
I mentioned the other types of membership a little bit above. Those are the Gold, Platinum and Diamond memberships. The main advantage with them is that if you show up and the debt collector gives up just because you do, you’ll save money because you won’t be paying for things you don’t us. Don’t laugh, that can happen. And it does happen maybe 1 percent of the time. They’re looking for an easy, automatic victory, and just by answering you make them decide to go away. Like I said, that happens about 1% of the time as far as I can tell. To be frank, nobody that’s happened to felt bad about getting the 20-20, but it’s a fact that a monthly membership would have cost less in that situation. Just about any other situation, though, and the 20-20 will save you a bunch of money and a ton of time and worry.
It’s the way to go for almost everybody. Go here to sign up for the membership now, be sure to click on the 20-20 membership option.
Debt Defense in 20-20 Vision
Introducing the 20-20 Memberships
We are introducing two new types of membership, the 20-20 and 20-20 plus. Right now, the difference is just how long they last, but it is likely that there will be some special content or materials for 2020+ before too long.
If you have watched the videos at the Overview of Litigation page, you know why we’re offering these products and why I think they’re a great deal. I will outline the new memberships briefly below.
First and mainly, the 20-20 membership will be a “pay-once” program. For a flat price you will receive all membership benefits for 12 months. This should get you all the way through to the end of any litigation you are involved in now. You won’t buy anything else from us or be charged again. Here’s what the 20-20 membership includes:
Teleconferences – currently we have them twice per week. Depending on need, that number could increase so that people regularly have an opportunity to ask questions in real time.
Access to member-only materials, including what used to be called the document bank. This gives you access to materials that have been created for a variety of different real-life situations as well as a large number of articles addressing the situations most debt litigants encounter. In other words, the 20-20 is a full membership, and you get everything members ever get.
Free access to all of our products. You won’t have to buy anything anymore. If you need a motion to compel pack, for example, you can download it for free. And that’s true of all of our materials that are currently for sale.
Specifically, that includes the Debt Defense Litigation Manual, the Three Weaknesses Almost every Debt Collector Has and how to Use them, materials on assignment contracts (not yet, but soon, a product), the Legal Research and Analysis report, and much more.
Comparison to Other Memberships
You can check the prices, but you’ll find that, added up, these materials and benefits would cost at least $1,000, so this is by far the lowest price we’ve ever offered. The 20-20 (regular) will cost $250 for 12 months, and the 20-20+ will cost $300 for 18 months. These prices will stay good at least through February 15.
Our other memberships are designed more on a pay-as-you-go basis. They all include at least two teleconferences per week, with the possibility of increasing as necessary to allow you to get questions asked and answered. Beyond that, they offer general access to most documents in what used to be called the document bank. And they have a graduated discount on specific products you might need. Our goal was to let people get and pay for what they need but not other stuff.
That turns out not to be ideal for some, since it involves repeated billing (monthly) and occasional extra expense when they need a new product. If you prefer, though, this membership remains available.
Our 20-20 memberships eliminate the repeated and occasional costs. Pay once up front and get it all for a year (20-20) or year and a half (20-20+). The overall price will be much lower than one of the other memberships if you end up needing one or more products, as most members will. I say that because if you need a discovery pack and any one motion pack you’re already saving money, and it is likely that you will need those things. Many members need much more.
What Makes Something “Evidence” in Debt Cases?
What Makes Something Evidence
For a free copy of this article in PDF format, click here: what makes it evidence
This article is a brief but important discussion about “evidence,” what it is, how it works, and what to do about it. I get a lot of questions about “striking” documents at various times in a lawsuit, so this may help with that, too. While this article is intended to be a stand-alone article, it is also a part of our Glossary of Legal Terms, where we explain legal concepts and language to non-lawyers. Please feel free to use that resource if you run into a legal term you don’t understand.
But in this article we discuss something that most people understand a little bit about.
What is Evidence?
In a way, evidence is just “stuff.” It’s stuff that is supposed to relate to a case, so let’s start by introducing the concept of “relevance,” which is the formal way in which material relates to a case.
Relevance
Something is “relevant” if it makes some fact that matters to your case (is “material” to your case, in legalese) somewhat more or less likely to be considered true. A bank statement, for example, might be relevant to show how much you owe, or that it is your account.
It doesn’t have to “prove” it. Just make it more or less likely, and of course some evidence is much, much more convincing than other things might be. In debt law, the “credibility” of evidence actually rarely matters because what the debt collectors typically use are credit card statements and other things like that. For some reason the courts almost always believe them, despite all the stories of how often they’re wrong.
In any event, this video will presume that the “evidence” of which we are speaking is relevant. But you should never just do that. Always consider the question of relevance as one of the important first questions. Does it impact on something the debt collector must prove to establish its case? Anything else is not relevant and should be objected to on that basis.
How is Evidence Used
So what turns this relevant stuff into “evidence?”
The “stuff” becomes “evidence” when you ask the court to consider it for some specific purpose. That is deceptively simple, and you might think it doesn’t mean anything. But it means a lot, actually. It means that when a debt collector attaches statements or affidavits to its petition, it is NOT evidence, unless the petition is a “verified petition” where somebody is swearing that the allegations, and the evidence attached are true. Those are quite rare, but if you have one, you will have to verify your answer as well. So in that situation the stuff is a lot like evidence.
However, we need not consider that further because in almost all debt cases, there isn’t a verified petition, and the documents attached are NOT evidence in any present sense.
This in turn suggests that a motion to strike the attachments is pointless, and you should also be aware that the plaintiff is not trying to prove its case – so a motion to dismiss for lack of evidence is also pointless at that stage.
Stuff generally becomes “evidence” at two times in a case.
- On an “evidentiary motion.”
- And at trial.
An evidentiary motion is a motion that calls for some sort of proof. Most typically, that would be a motion for summary judgment, but a motion to dismiss for failure to serve would also involve proof of that failure. Likewise, motions to compel require that you show the court certain facts, and motions for sanctions can involve much more involved fact finding.
And a motion to vacate is also going to require some very specific evidence.
But in most of these situations you’re simply presenting evidence to show a rational person could believe something – you’re not asking the court actually to believe it. In motions for summary judgment you’re asking the court to find, decisively, that certain facts are established beyond dispute, and at trial you’re asking the fact finder to believe you and not the other person.
Evidence is always Evidence of Something
In any event, we now have stuff that has become evidence. It’s always evidence of SOMETHING. Right?
It’s supposed to show some specific, important thing is true or not true. And of course evidence could show more than one thing is true or not true, which is important.
Evidence is always evidence of some fact or facts, in other words. You don’t move to “strike” it. You OBJECT to it when the other side tries to get the court to consider it. You object to its being used to prove some specific fact (but maybe not some other fact).
Admissibility
Before the court can consider the evidence, it first must decide whether it is “admissible” (It has to decide whether it can consider it.)
We talk a lot about admissibility in other materials, because most debt cases are decided based on
whether evidence – usually affidavits and bank statements – is admissible. Your objection to evidence is to its admissibility. In other words, you are asking the court not to consider the evidence at all. At a jury trial, it’s important to do this before the evidence is seen by the jury, so you object to the question asked (rather than the answer given) if possible, or you object when the other side asks to show it to the jury.
Remember that it is possible to have evidence admitted for one thing but not another thing. Suppose you’re claiming, for example, that you sent a request for verification, but they never verified before suing you. Your copy of the letter would be proof of what the request said. Your testimony that you sent the letter would be proof that you sent it, but you would ALSO need some proof that they received it. Hence it makes sense to send them by certified mail.
The letter itself is admissible about the contents of the request but not the receipt.
Normal people are not used to breaking things down in this way, and this turning of everything into an elaborate flow-chart takes some getting used to. But you need to think that way both to get your own evidence admitted, and also – more importantly in debt cases – to attack the debt collector’s evidence.
Remember that if the debt collector manages to get credit card statements admitted into evidence that will almost always be fatal to your defense.
Your Legal Leg Up
Your Legal Leg Up is dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. Lawsuits have a number of points where specific action is called or, and we have products to help you deal with most of these situations. We also have memberships that give you access to more materials and better training, and also provide a regular opportunity to ask questions and get answers in real-time. You can use this time to find out what the debt collectors are trying to do and what you might do in response, and you can get guidance on the issues that matter and how to think about and address them.
In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many others are available to everyone. Every page has a site search button in both the header and footer. Put in a key word – a word you think relates to what you’re looking for – and enter. You will get a page of results.
Products Related to this Article
Because this is a general article, there are not any products specifically related to this post. I do suggest asserting your rights early and often, and you might find our Take Control of your Life product helpful in that. I also suggest great care in researching and analyzing facts and law. You might find our Guide to Legal Research and Analysis product helpful for that.
Beyond that, if you are facing significant debt problems, I’d suggest our memberships.
Memberships
Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual and the Three Weaknesses Report for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.
Sign Up for Free Information
You can sign up to receive information from us by clicking on this link and following the instructions: https://yourlegallegup.com/blog/sign-up-for-free-information/
What you’ll receive if you sign up is a series of several videos and articles spread out over several days, and then you will occasionally hear from us as we add information to the site. We don’t always announce that information, though.
What you will not receive is any marketing from other people – or much from us, either. Our goal is to make the site more useful to members and visitors, not to swamp anyone with sales materials. The information we send will have links to information or products that we think may be helpful.
Voidable Judgments – the Other Kind of Motion to Vacate
Voidable Judgments – the Other Kind of Motion to Vacate
For a free copy of this article in PDF form, click here: the other kind of motion to vacate
Most of the time when people talk about motions to vacate they’re talking about motions to vacate a default that occurred as a result of failure to respond to a properly served lawsuit. There is another kind of motion to vacate, though, for people where the court did not have proper jurisdiction. If that’s your situation, this is a better way.
A Quick Review
Once a lawsuit is properly served on a defendant, the court has “jurisdiction” (the power to address the claims made in the suit) at least provisionally. If a defendant fails to respond appropriately to such a suit, the plaintiff will probably get a default order and judgment. That is what happens in a large majority of debt cases.
An “appropriate” response that will prevent a default judgment is either:
- An Answer, or
- a motion to dismiss the suit.
It is also possible to file a motion “for more definite statement” in some states, as well. The point is, though, that every allegation in the petition must either be moved against or answered. If that happens, a default judgment should never be issued.
If you fail to answer and the court awards a default judgment, you can ask the court to give you another chance by asking it to “vacate” the default and allow you to defend the case. I discuss what this is, what the time limits are, and how to do it in several articles, see, e.g., Overcoming Default Judgments.
Voidable Judgments
But what if the court does NOT have or get proper jurisdiction over you?
This can happen in two common ways: the debt collector does not manage to serve you properly; or the debt collector sues you in a court that doesn’t have power over you (because you live somewhere else). Other ways are possible, but these are by far the most common.
If you find out that you are being sued in a court that lacks jurisdiction before judgment, you can move to dismiss the case on that basis, but that can defeat the whole purpose of the rule – since in order to do so you would have to appear (“specially”) in the court to do it, and if you’re far away, that’s impractical. Another way to handle the situation is to let the court rule and then attack the judgment in the correct court. That also has significant drawbacks, so if you know about the situation before judgment, it can present a tough question.
But most people do not learn about suits where the courts lack jurisdiction before judgment. They find out about them later. What do you do if that happens?
No Authority, No Judgment
The good news is that there is NO time limit on a voidable judgment. The court never had authority to enter the judgment, and “all” you have to do is establish that fact. You can do that at any time, and it completely undoes the judgment. It is called “void ab initio,” meaning “from the beginning” as if it never existed.
Burden of Proof
The bad news is that you can have a high burden of proving that the court did not have authority over you. Most courts require you to present “clear and convincing” evidence of the facts that you were not subject to the court’s jurisdiction. In the case of residency – you were living in California but sued in Florida, that isn’t necessarily so hard.
In the case of sewer service – where you weren’t served, but the process server swore you were, it can be much more of a challenge. Still, almost everybody I’ve known who tried it succeeded. That’s because the process servers normally describe the person to whom they theoretically gave the petition, and they usually won’t know your age or body shape, and often guess incorrectly your gender and race. If their affidavit says they served a woman 5’2” eyes of blue and you’re obviously not that, you’re good. Other things obviously aren’t as easy to prove.
What you Have to Prove
You have to prove by good evidence that the court lacked jurisdiction over you.
What you Do Not Have to Prove
You won’t have to prove you made any mistake (you didn’t) or that the substance of the judgment (i.e., you owe $2,000) was wrong in any way. You do not need to allege or prove any “defense” to the suit, in other words. Attack the jurisdiction, and the case goes away.
What you Should Not Have to Prove
You shouldn’t have to prove you didn’t receive notice of a sewer service filing. Suppose, for example, you found it in the trash in a nearby dumpster. Most courts require proper service and not “notice” of the suit. But I’m afraid you can’t count on the courts to apply that rule consistently. You will not want to offer proof or any indication that you heard about the case in any way prior to judgment. If you became alerted to the fact that a process server was around and do some research in the court files, you will want to disguise the fact and cover your trail.
Special State Rules
The rules for this sort of motion to vacate are NOT the easily found rules in the rules of civil procedure. You must research your state’s rules for voidable judgments and follow whatever rules you find there.
Products Related to this Article
We do not have a product directly related to this article if you are moving to void a judgment. You may find our Motion to Vacate Pack helpful in showing you the form of motions and proof, but it does not contemplate the rules you would need to follow. I emphasize, again, that in filing a motion to void a judgment entered without jurisdiction, you would not want or need to include a “proposed Answer,” and you would not need to allege a defense (although claiming a defense wouldn’t hurt and might help).
You would probably find our memberships useful, particularly if the situation with the debt collector that brought you here is not the only one you’re facing.
Memberships
Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual and the Three Weaknesses Report for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.
Sign Up for Free Information
You can sign up to receive information from us by clicking on this link and following the instructions: https://yourlegallegup.com/blog/sign-up-for-free-information/
What you’ll receive if you sign up is a series of several videos and articles spread out over several days, and then you will occasionally hear from us as we add information to the site. We don’t always announce that information, though.
What you will not receive is any marketing from other people – or much from us, either. Our goal is to make the site more useful to members and visitors, not to swamp anyone with sales materials. The information we send will have links to information or products that we think may be helpful.
The UCC is NOT a Defense to Debt Collectors
Uniform Commercial Code (U.C.C.) and Debt Law – Fact and Fiction
To download a free copy of this article in pdf format, click here: The UCC not a Defense
The Uniform Commercial Code (UCC) offers no special protection from debt collection or debt collectors, and trying to use it that way will quickly lead to a judgment against defendants. Avoid this scam.
Introduction
There is an extremely vocal group of people who think that the U.C.C. offers special protections from debt collectors. They choose snippets of the text of the U.C.C. and highlight them in numerous videos on Youtube and in their other promotions, and they attack anyone who contradicts them. Like the (very similar) Strawman theory, however, the U.C.C. is a slender reed to support your hopes of avoiding or defeating creditors and debt collectors.
In fact, it does essentially nothing to help debt defendants. We’ll discuss the U.C.C. and then tell you what you should be doing instead of tripping over strawmen.
What is the Uniform Commercial Code?
The U.C.C. is just a model of commercial legislation for state governments to use in designing their own commercial laws. In itself, it has no legal force whatsoever, but all the states have adopted some parts of it, so most of the provisions of the UCC are incorporated into various state laws. Oddly enough, perhaps, the “Uniform” Commercial Code is NOT uniform – its drafters could not agree on every provision, and so there are competing provisions which are not the same, and thus state laws can vary on important parts of the commercial code.
Because of the federalized times we live in, and because most people confine their legal affairs to just one state, our daily lives rarely expose us to different state laws and their consequences. Still, state laws can differ both from state to state and from state to federal, and they often overlap in ways familiar to most lawyers (but out of the site of non-lawyers). The U.C.C. was designed to smooth out the way the laws overlap.
It all sounds non-controversial now, but at the time it was a big step towards protecting and encouraging interstate commerce, and in fact the U.C.C. was under construction at about the time the interstate highway system was developed.
How the UCC was Created
The U.C.C. was created by two nongovernmental legal organizations: The National Conference of Commissioners on Uniform State Laws, and the American Law Institute. The document, standing alone, has no legal authority or power at all.
This is not saying the UCC is not significant – just that it is a document created by a bunch of academics that has no independent force or impact on anybody. So why is the UCC a big deal? It’s a big deal because all the states have adopted some portions of it. The UCC was designed to help legislators bring order to what was there, not force them to have the same laws. Remember, legislatures make laws, not think tanks.
The parts of the U.C.C. that have become law in your state will be reflected in your state laws, and you should look for the law in your state laws and not the U.C.C. itself. When people say “the U.C.C. does this or that,” or “requires this or that,” they’re showing you they do not understand the law. Don’t look to these people to tell you how to beat the debt collectors. Likewise, since the portions of the UCC that were adopted are just part of your state law they do NOT trump other laws and have no special, magical power.
The UCC Was Created to Serve Businesses, not Consumers
The main concerns of the drafters of the U.C.C. were the rights and abilities of businesses in relation to each other. The drafters believed that a set of laws that made businesses more predictable and reduced conflict would benefit everyone, but their concern was with business, not consumer, protection. A mere glance at the document will prove the point – it defines “bills of lading” and discusses where legal responsibility and risk shift from party to party in commercial transactions and things like that rather than the issues that concern consumers. Where the issues do have an impact on consumers, there are usually laws that override the U.C.C. and specify consumer rights.
There is almost no discussion of debt at all in the U.C.C. or in the state laws enacting it. Debt, and most particularly consumer debt, has primarily been addressed by a series of federal laws like, for example, the Truth in Lending Act and state laws based on these federal laws.
You CAN beat the debt collectors in many cases, and without even having to hire a lawyer – but your solutions will most often be in consumer protection laws like the Fair Debt Collection Practices Act or Fair Credit Reporting Act, or in the normal rules of the court.
We help you do that.
Your Legal Leg Up
Your Legal Leg Up is a website and business dedicated to helping people defend themselves from debt lawsuits without having to hire a lawyer. As you can see below, we have a number of products as well as memberships that should help you wherever you are in the process. In addition to that, our website is a resource for all. Many of the articles and materials are reserved for members, but many are available to everyone.
Products Related to this Article
We have no products related to this article because you the article addresses your fundamental approach to debt defense. You would probably find our memberships useful, however, and we have materials designed to address specific situations as they arise.
Memberships
Members get discounts on all products as well as unlimited opportunities to join our regularly scheduled teleconferences. This gives invaluable real-time assistance, answers to questions, help with strategies, and encouragement. You also get the Litigation Manual and the Three Weaknesses Report for free with membership. Find out about memberships by clicking the “About Memberships” link in the menu at the top of the page.
Sign Up for Free Information
You can sign up to receive free information from us by clicking on this link and following the instructions: https://yourlegallegup.com/blog/sign-up-for-free-information/
What you’ll receive if you sign up is a series of several videos and articles spread out over several days, and then you will occasionally hear from us as we add information to the site. We don’t always announce that information, though.
What you will not receive is any marketing from other people – or much from us, either. Our goal is to make the site more useful to members and visitors, not to swamp anyone with sales materials. The information we send will have links to information or products that we think may be helpful.